Citation Nr: 1305617 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 10-24 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active service from November 1966 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in November 2010. A copy of the transcript has been associated with the claims file. The issue was remanded for further development by the Board in June 2011 to afford the Veteran with a VA examination regarding his hypertension. The Veteran was afforded a VA examination in October 2013. The examiner provided the requested opinion and a review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. Hypertension was not shown in service or for many years thereafter, and there is no competent evidence suggesting the disability is related to service. 2. The most probative evidence indicates the Veteran's hypertension is not related to or permanently worsened by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for hypertension, to include as secondary to service-connected diabetes mellitus have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The record shows that through VCAA letters dated December 2008 and June 2009, prior to the decision on appeal, the Veteran was informed of the information and evidence necessary to substantiate the claim. The Veteran was also advised of the types of evidence VA would assist in obtaining, as well as the Veteran's own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). He was also advised of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes VA treatment records, VA examination reports, private treatment records, service treatment records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Veteran was afforded VA examinations in February 2008, September 2009, and October 2013. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the examiners were provided with an accurate history, the Veteran's history and complaints were recorded, and the examination reports set forth detailed examination findings. Therefore, the examination reports are adequate to decide the claim of service connection. Thus, further examination is not necessary regarding the issue on appeal. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2011) requires that the Veterans Law Judge (VLJ) who conducts a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. Here, during the Board personal hearing, the VLJ noted the elements of the claim that were lacking to substantiate the claim for service connection. The VLJ asked questions to ascertain the onset and etiology as well as the basis for the Veteran's belief that his hypertension is related to his diabetes. The Veteran was assisted at the hearing by an accredited representative from the Connecticut Department of Veterans Affairs. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection. Therefore, the Board finds that no further action in light of Bryant and 38 C.F.R. § 3.103(c)(2) is necessary. For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issue on appeal. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and hypertension becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b) (2012). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that he has a current diagnosis of hypertension that is causally or etiologically related to his service-connected diabetes mellitus. Specifically, the Veteran has also asserted that his hypertension is due to his use of the drug Reglan in treating his diabetes mellitus. The Veteran's service treatment records show no treatment or diagnosis of hypertension. Upon entry into service in October 1966, the Veteran's blood pressure was 130/80. The examiner found the Veteran's heart and vascular system to be clinically normal. In February 1967, the Veteran's blood pressure was 126/84. A June 1969 report of medical examination showed a blood pressure reading of 150/80 sitting and 160/80 standing. The examiner again found the Veteran's heart and vascular system to be clinically normal. The remainder of the Veteran's service treatment records is silent regarding hypertension. Post-service, the first medical evidence of a diagnosis of hypertension is dated February 2000, although the Veteran reported during the October 2011 VA examination that his high blood pressure was diagnosed in 1984 originally. In his lay statements and in his testimony during the Board hearing, the Veteran has clearly stated that he did not have hypertension during service. Rather, the Veteran asserts that his diagnosis of hypertension occurred shortly after his being placed on the medication Reglan, which occurred many decades after service. The record is silent regarding any indication that the Veteran's hypertension is directly related to service. The Veteran's lay statements assert that his hypertension is related to his diabetes treatment. Further, the medical evidence shows that a diagnosis of hypertension was provided in 1984 at the earliest. Based on the medical and lay evidence, the Board finds that the Veteran did not experience chronic symptoms of hypertension during active service or continuous symptoms of hypertension after separation from service. Additionally, the Veteran's hypertension manifested more than one year after separation from service. Finally, competent evidence does not indicate that the Veteran's hypertension is directly related to service. The Board must then address entitlement to service connection on a secondary basis. The only evidence of record relating the Veteran's current hypertension to his diabetes mellitus treatment are the Veteran's lay assertions that the disabilities are related to his use of the medication Reglan. The Veteran has not demonstrated that he has expertise in medical matters. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Here, although the Veteran is certainly competent to testify as to symptoms, the question as to the etiology of his hypertension is a matter requiring medical expertise to determine. Indeed, hypertension can have multiple causes, and such question is one typically determined by persons with medical training. Thus, on this point, the Board finds the medical evidence of record to be more probative than the Veteran's lay assertion as to the cause of his hypertension. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Here, there is no medical evidence of record finds a relation between the Veteran's hypertension and his diabetes mellitus. The only medical opinion in the file was provided by the VA examiner in October 2011. The examiner reviewed the Veteran's claims file and determined that the Veteran's hypertension is less likely than not proximately due to or the result of the Veteran's diabetes mellitus. He specifically noted that treatment with Reglan is not known to be a risk factor for hypertension. He also noted that tardive dyskinesia is not known to be a risk factor for hypertension. Diabetes may cause hypertension by inducing renal dysfunction, but the examiner found that the Veteran lacks any significant renal dysfunction. He also found no evidence that the Veteran's tardive dyskinesia, diabetes, or diabetic gastroparesis worsened his hypertension. The examiner was fully informed of the pertinent factual premises of the case and addressed the Veteran's lay assertions. Additionally, he provided a fully articulated opinion that included a reasoned analysis. Therefore, the Board finds that the examiner's opinion is of significantly more probative value than the Veteran's lay assertions. In sum, the evidence does not show and the Veteran does not contend that his hypertension is related to service or manifested within a year of discharge from service. Moreover, the most probative evidence indicates that the Veteran's hypertension is not related to or permanently worsened by his diabetes mellitus, to include medication taken for such. Accordingly, the preponderance of the evidence is against the claim, and service connection for hypertension is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs